J.P. Jagan Mohan Reddy, J.
1. This application filed under section 109, of the Civil Procedure Code, read with article 133 of the Constitution and section 83 of the Hyderabad Income-tax Act, is for leave to appeal to the Supreme Court against an order dated 15th April, 1955, which was on a reference by the Income-tax Appellate Tribunal at Bombay.
2. We may at once state that section 83 of the Hyderabad Income-tax Act applies to this case as the assessments which are the subject matter of reference by the Tribunal were made and tax levied under the said Act. Section 83 of the said Act is as under :
'(1) When any case has been referred to the High Court under section 82, it shall be heard by a Bench of not less than two judges.
(2) An appeal may lie to the Judicial Committee from any judgment of the High Court delivered on a reference made under section 82.
(3) The provisions of the Judicial Committee Regulation relating to appeal shall, so far as may be, apply in the case of appeals under this section in like manner as they apply in the case of appeals from orders or decrees of the High Court.
(4) Nothing in this section shall be deemed to interfere with any rules made by the Judicial Committee, for the time being in force, for the presentation of appeals to the Judicial Committee or their conduct before the bench of the Judicial Committee.'
3. Inasmuch as the State judicial Committee has been abolished by virtue of clause (4) of article 374 of the Constitution and having regard to the fact an appeal from a reference being a creature of the statute, the absence of a statutory provision providing for the form of appeal would not confer a right of appeal to the Supreme Court.
4. We had in certain cases arising under the Excess Profits Tax Act and, at any rate, in one case arising under the Hyderabad Income-tax Act, viz. Commissioner of Income-tax v. Baliram Santoba, observed that so far as appeals pending before the judicial Committee at the time of enforcement of the Constitution were concerned, they stood transferred to the Supreme Court by virtue of clause (4) of article 374 of the Constitution; that in the case of Janardhan Reddy v. The State, their Lordships had observed : 'If, therefore, there exists no right of appeal under the Constitution such right cannot be inferentially held to come into being on the application of the Constitution to the Hyderabad State'; and that as there was no specific provision under the Act permitting an appeal to the Supreme Court an order on a reference cannot come under clause (1) of article 133 of the Constitution as it cannot be said to be a judgment, decree or final order. We may in so far as appeals from orders under income-tax reference are concerned advert to the judgment of their Lordships of the Privy Council in the case of Tata Iron and Steel Co. Ltd. v. Chief Revenue Authority of Bombay, which held, following the observation of Lord Esher in re Knight and the Tabernacle Permanent Building Society, with reference to Ex parte County Council of Kent, that the jurisdiction etc., exercised by the High Court on a reference under the Income-tax Act is an advisory or consultative jurisdiction, an observation which has since been approved by their Lordships of the Supreme Court.
5. The learned advocate for the assessee, however, submits that in the several cases decided by us both under the Hyderabad Excess Profits Tax Act and the Hyderabad Income-tax Act we had not considered the effect of clause 23 of the Adaptation of Laws Order, 1950, issued by the President on 26th January, 1950, which inter alia, states a follows :
'Subject to the provisions of this order, any reference by whatever form of words in any existing law to any authority competent at the date of the passing of that law to exercise any powers or authorities or to discharge any function in any part of India shall, where a corresponding new authority has been constituted by or under the Constitution, have effect until duly repealed or amended as if it were a reference to that new authority.'
6. The effect of the aforesaid clause, according to the learned advocate for the petitioner, is to substitute for the Judicial Committee, the corresponding authority under the Constitution viz., the Supreme Court, as such a right of appeal is conferred on the Supreme Court under Section 23 of the Hyderabad Income-tax Act. This argument appears to us to be fallacious.
7. The Adaptation of laws Order, 1950, was promulgated by the President under powers conferred by clause (2) of article 372 of the Constitution which empowers him to make such adaptations and modifications of any law in force in the territory of India whether by way of appeal or amendment as may be necessary or expedient for the purpose of bringing the provisions of such law into accord with the provisions of the constitution. The object of clause (2) of article 372 was to confer a power on the President to bring the provisions of any law in force into accord with the provisions of the Constitution. But where the provisions of the Constitution have definitely abolished the jurisdiction of the former State Judicial Committee by virtue of clause (4) of article 374 and transferred the appeals and other proceedings pending before it at the commencement of the Constitution to the Supreme Court to be disposed of by it, it could, by no stretch of the language used in sub-clause (2) of article 372, be said to confer jurisdiction on the Supreme Court to entertain appeals which used to be entertained by the State Judicial Committee under section 83 of the Hyderabad Income-tax Act. Clause (4) of article 374 is as under :
'On and from the commencement of this Constitution the jurisdiction of the authority functioning as the Privy Council in a State specified in Part B of the First Schedule to entertain and dispose of appeals and petitions from or in respect of any judgment, degree or order of any Court within that State shall cease, and all appeals and other proceedings pending before the said authority at such appeals and other proceedings pending before the said authority at such commencement shall be transferred to, and disposed of by, the Supreme Court.'
8. Even prior to the coming of the Constitution, H. E. H. the Nizam had by his Fireman dated 23rd November, 1949, declared that the provisions of the Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which were then in force in the State. We had in Ahmadunnissa Begum v. The State, held that the prerogative of the Nizam being inconsistent with a Republican Constitution ceased to exist and that view has now been confirmed by their Lordships of the Supreme Court in the case of Thivalappil Kunjuvaru Vareed v. State of Travancore-Cochin. In that case the question of commutation of sentences under sections 401, 402 and 402A of the Criminal Procedure Code as applied to Part B States by Central Act 1 of 1951 having arisen it was held that after the application of the Indian Code of Criminal Procedure the prerogative under the old Cochin law must in any case be deemed to have been repealed or abrogated by competent legislative authority.
9. By the same parity of reasoning after the coming into force of the Constitution the prerogative rights of the Nizam, being inconsistent with the provisions of the Constitution, must be taken to have been superseded and abrogated as stated in the Proclamation issued by the Nizam on 23rd November, 1949.
10. It may be observed that the prerogative right of the Privy Council also was similarly abolished by the Abolition of Privy Council Jurisdiction Act (No. 5 of 1949) and the Act made special provisions for pending cases as well as vested right of appeals to be transferred to or entertained by the Federal Court.
11. It is, therefore, clear that as and from the commencement of the Constitution the State Judicial Committee was abolished and under the Constitution the only provision that was made was with respect to pending cases. There was no provision under the Constitution with respect to vested rights or with respect to the forum in which these rights accruing under any of the State laws could be agitated in appeal from the judgments or orders of the High Court, except the ones contained in articles 132, 133, 134, 135 and 136.
12. The question whether appeals lie to the Supreme Court under any of the aforesaid provisions of the Constitution is a matter to which we will refer shortly in the context of the submission made by the learned advocate with particular reference to articles 132 and 133 and sections 109 and 110 of the Indian Civil Procedure Code. But, before we do so, we should like to refer to the observations of their Lordships of the Supreme Court in Daji Saheb v. Shankar Rao Vithal Rao Mane in which it is laid down that when a forum is abolished without any forum substituted in its place for the disposal of pending matters or for the lodgment of appeals, the vested right perishes. Chandrasekhara Ayyar, J., observed at page 30 as follows :
'If the Court to which an appeal lies is altogether abolished without any from substituted in its place for the disposal of pending matters or for the lodgment of appeals, the vested right perishes on doubt.'
13. In that case, however, their Lordships held that by virtue of article 135 which specifically laid down that 'until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.' An appeal would lie to the Supreme Court even in cases of the value of Rs. 10, 000 and upwards not withstanding the fact that the adaptation of section 110 of the Civil Procedure Code raised the valuation to Rs. 20, 000 and that the right of appeal which had accrued before the commencement of the Constitution was saved because it was a matter over which jurisdiction was exercisable by the Federal Court within the meaning of article 135.
14. When the Constitution inserted an article such as article 135 to vest jurisdiction in the Supreme Court with respect to matters not covered by article 133 or article 134 save the jurisdiction and powers in relation to any matter which were exercisable by the Federal Court immediately before the commencement of the Constitution under the existing law, the omission to provide in like manner for matters in which a vested right had accrued and over which the abolished Judicial Committee of the State exercised jurisdiction, manifests an intention to abolish the forum of appeal altogether without any forum substituted in its place for the disposal of pending matters or for the lodgment of appeals in cases where rights are vested. If an appeal would lie to the Supreme Court in civil matters under articles 132 and 133 and in criminal matters under article 134 apart from the provisions of article 136 by way of special leave granted by the Supreme Court, there is no difficulty, but in cases which are not covered by the said articles it is clear that the forum of appeal cannot but be said to have been abolished without any other forum substituted in its place and the Adaptation of Laws Order cannot be said to substitute the Supreme Court in the place of the State Judicial Committee particularly when an appeal to the State Judicial Committee was a prerogative right exercised by the Nizam and was subject to his assent. The Supreme Court cannot be said to be a corresponding authority to the authority abolished namely, the State Judicial Committee.
15. Notwithstanding this the Constitution has provided for a remedy to their Lordships of the Supreme Court in cases which do not come within articles 132 - 135 by providing for special leave under article 136.
16. The learned advocate for the petitioner further argues with reference to Raju Chettiar v. Commissioner of Income-tax, Madras, that the words 'judgment, decree or final order' would include a judgment delivered by the High Court on a reference under section 66 of the Indian Income-tax Act, 1922, as such an appeal would lie under article 133 of the Constitution.
17. In the above case their Lordships of the Madras Court distinguished the Privy Council decision in the case of Tata Iron and Steel Co. on the ground that a 'decree, judgment or order' made by the High Court under section 51 of the Indian Income-tax Act, 1918, was merely advisory and not in the proper and legal sense of the term 'final' and that having regard to the change in the language in clause 39 of the Letters Patent where the words are 'from any final judgment, decree or order' and that in section 2(b) of Act 1 of 1948, where the words were 'any judgment, decree or final order to which this Act applies, ' the Privy Council case was held to be inapplicable to the petition before them and consequently, they held that an appeal lay from the judgment of the High Court in a reference under section 66 of the Indian Income tax Act to the Federal Court. We may observe that this Madras case was dissented from in the case of Jamnadas Prabhudas v. Commissioner of Income-tax, where several judgments of the Indian High Courts were referred to as going contrary to the view expressed in the Madras case.
18. In this case Chagla, C.J. held that the expression 'judgment, decree or final order' used in article 133(1) of the constitution of India does not apply to a decision by the High Court on a reference under section 66 of the Indian Income-Tax Act, 1922, and that, therefore, when a Court against the decision of the High Court on a reference under the Income-tax Act, apart from article 132, the High Court has to consider whether leave should be granted or not only under section 66A(2) of the Income-tax Act and not under article 132 of the Constitution.
19. In our view, with great respect, the change in the language adverted to by the Madras High Court in Raju Chettiar's case does not have the effect of making the order in a reference case, 'a judgment'. The word 'judgment' occurring in section 66 of the Indian Income-tax Act, or in section 82 of the Hyderabad Income-tax Act, is used to indicate an opinion or advice on a legal question referred to it and under sub-section (5) of the said sections of the respective Income-tax Acts it is the Appellate Tribunal which passes the final orders on the judgment of the High Court.
20. Further it is not the judgment of the High Court which determines the rights between the parties. The word 'judgment' in articles 132, 133 and 134 is used in the technical sense of determining the rights of parties in the matter before the Court and should, therefore, be taken as used in the sense in which the word 'decree' is used in the Code of Civil Procedure and as meaning a declaration of final determination of the rights of the parties in the matter brought before the Court. This is what was held by the Federal Court of India in Mohd. Amin Brothers Ltd. v. Dominion of India. In Prem Chand v. State of Bihar, a similar question had arisen before their Lordships of the Supreme Court, namely, whether the grant of a certificate for leave to appeal to the Supreme Court under article 133 from an order rejecting the application to direct the board of Revenue to state a case under the Bihar Sales Tax Act was properly issued. Section 21 of the Bihar Sales Tax Act provides that if the Board of Revenue refuses to make a reference to the High Court, the applicant may apply to the High Court against such refusal and the High Court, if it is not satisfied that such refusal was justified, may require the Board of Revenue to state a case and refer it to the High Court. The section also made provisions similar to that in sub-section (5) of section 83 of the Indian Income-tax Act or sub-section (5) of section 83 of the Hyderabad Income-tax Act.
21. A preliminary objection was raised before their Lordships of the Supreme Court that the appeal was not competent. Their Lordships after considering the case of Harihar Gir v. Commissioner of Income-tax, Bihar & Orissa, clause 31 of Letters Patent of the Patna High Court, Tata Iron and Steel Co.'s case and the observations of Lord Esher in Knight and the Tabernacle Building Society In re observed at page 16 as follows :
'It cannot also be held that the order was passed by the High Court in this case in the exercise of either original or appellate jurisdiction. It is not contended that the matter arise in the exercise of the appellate jurisdiction of the High Court, ... as was held be the judges of the Lahore High Court, in the case to which reference was made because the proceedings did not commence in the High Court as all original suits and proceedings should commence. But the High Court acquired jurisdiction to deal with the case by virtue of an express provision of the Bihar Sales Tax Act. The crux of the matter therefore is that the jurisdiction of the High Court was only consultative and was neither original nor appellate.'
22. In view of this categorical statement of their Lordships of the Supreme Court particularly the sentences underlined by us we are unable to treat the contention of the learned advocate that a 'judgment' on a reference under section 82 is meant as a 'judgment, decree or final order' within the meaning of article 132 or 133 as valid nor in the view we have taken is it necessary to determine the further question raised by the learned advocated that the proceedings under reference are civil proceedings.
23. In the view we have taken, the application is liable to be and is, hereby, rejected with costs which we fix at Rs. 50.